Ask the Expert

Michael L. Antoline, J.D.
DAYSPA Editorial Advisory Board Member
Attorney
Champaign, IL

Question:

Is it possible to create a website geared toward supplying information about problem clients to spas and estheticians? —Cara L. Solomon, owner, Body Restoration Spa, Philadelphia

Answer:

I see several concerns.

First of all, if the material posted is discovered, it could result in a claim of defamation and a lawsuit. One requirement for defamation is "publication," which is a legal term. It refers to transmitting the defamatory material to a third party. You'd be giving a litigious person yet another opportunity to sue.

I know there are certain websites catering to specific professions that share information about problem clients. These sites are password protected, require proof of membership in the trade and feature confidentiality rules. But these safeguards only prevent publication of the information to those outside the profession, while defamation can still occur to those with website access. I'm aware of similar lists of problem renters, usually on paper, that are circulated among members of local landlord associations. However, they're secretive about it—and for obvious reasons.

Let's say a woman with a disability visits a spa. She's demanding and difficult, which raises a red flag with the owner. The owner looks up this potential client on the website and sees that she's been reported as problematic. As a result, the spa refuses her service. The woman claims discrimination. With a confidentiality provision attached to the website, how can the spa owner use the information she found there as a defense? There may be a way, and there may not be. It's a risk the owner would take by making such a move.

Lastly, I wonder if there are enough problem clients to make such a website worthwhile. Someone would have to sponsor it, assume any potential liabilities and monitor it closely to filter out opinion and include just the facts. This could be a full-time job, especially because you know some people will just want to use the forum to vent. Frankly, I worry that the website would create more problems than it would solve.

There are several alternatives that a spa owner may consider when looking someone up. Reviewing a credit report of a potential client provides some indication of her trustworthiness. In order to do that, the spa owner would have to join a local credit bureau. It's also possible, in most populated jurisdictions, to go online to the local court clerk's website and type in a name to obtain information on her history in that venue. If the client's name comes up as a plaintiff or defendant in a lawsuit, that could provide some clues. (However, the problem with this last procedure is that most cases are settled before they are filed in court.)

The key is to be properly insured. If you have a strong policy backing you up, it mitigates the risks associated with litigious clients.

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